15:0586(127)AR - INS, Justice and AFGE Local 1917 -- 1984 FLRAdec AR

[ v15 p586 ] 15:0586(127)AR
The decision of the Authority follows:

15 FLRA No. 127
IMMIGRATION AND NATURALIZATION
SERVICE, U.S. DEPARTMENT OF JUSTICE
Agency
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1917, AFL-CIO
Union
Case No. O-AR-430
DECISION
This matter is before the Authority on an exception to the award of
Arbitrator Susan T. Mackenzie filed by the Agency under section 7122(a)
of the Federal Service Labor-Management Relations Statute (the Statute)
and part 2425 of the Authority's Rules and Regulations. The Union filed
an opposition. /1/
The dispute in this matter concerns the Union's allegation that the
grievant, a GS-12 Criminal Investigator, and other employees similarly
situated, were improperly denied full compensation for all of the
overtime hours they had worked during a number of pay periods. /2/ The
Agency essentially contended that the alleged loss of overtime
compensation resulted from the fact that 5 U.S.C. 5547 /3/ and 5 CFR
550.105 /4/ imposed a pay cap or ceiling on the maximum rate of pay that
could be paid in the pay periods involved. The Agency further contended
that it was also prohibited from granting compensatory time off in lieu
of pay for the alleged unpaid overtime.
The Arbitrator determined that while the limitation imposed by 5
U.S.C. 5547 and 5 CFR 550.105 was applicable in the particular pay
periods where the pay cap was reached, there was no restriction on
deferred payment for overtime earned but not paid because of the
limitation and, therefore, that compensation could be made in either pay
or compensatory time off in any subsequent period where the pay cap
would not be exceeded. As her award, the Arbitrator ruled that the
grievant had not been fully compensated for overtime hours worked and
directed the Agency to compensate the grievant and other similarly
situated employees for such uncompensated time in either pay or
compensatory time off.
As its exception the Agency alleges that the award is contrary to 5
U.S.C. 5547 and 5 CFR 550.105. The Authority agrees.
In Sullivan v. The United States, 665 F.2d 1012 (Ct.Cl. 1981), one of
the claims denied by the Court of Claims was that of an employee who
contended that although he had worked 88 hours of overtime in a
particular pay period he had been paid as if he had worked only 45
overtime hours and, therefore, that he had been wrongfully denied
compensation for the remaining 43 hours because of the limitation
imposed by 5 U.S.C. 5547. In denying the claim, the court held:
The flaw in (the employee's) argument is that he is not paid
pursuant to a single statute which provides an hourly rate for
specific services performed; his entitlement to pay is derived
from numerous statutes and regulations which must be read
together. These statutes and regulations, including section 5547,
provide a maximum compensation for the position held by (the
employee), which compensation he has received in full. Section
5547 does not deprive (the employee) of any vested rights or
otherwise take anything away from him. (Footnote omitted.) Id. at
1015, 1016.
Further, the Comptroller General has held that compensatory time off
which may be granted to an employee in lieu of monetary compensation for
overtime work is subject to the same aggregate salary limitation imposed
on employees by 5 U.S.C. 5547. See 37 Comp.Gen. 362 (1957). See also
60 Comp.Gen. 198 (1981).
Thus, in terms of this case, under the decision of the Court of
Claims in the Sullivan case and the decisions of the Comptroller
General, the grievant was fully compensated for all hours worked in the
pay periods involved when he received the maximum compensation provided
under 5 U.S.C. 5547 for such periods and any further pay or compensatory
time off was barred not only in that period but in any subsequent pay
period as well.
Consequently, the Arbitrator's award finding that the grievant had
not been fully compensated for overtime hours worked in the pay periods
where the pay cap was imposed and directing that the grievant and other
similarly situated employees be compensated for such time in a
subsequent pay period is contrary to 5 U.S.C. 5547, as interpreted and
applied by the Court of Claims and the Comptroller General, and is
likewise contrary to the implementing regulatory provision, 5 CFR
550.105.
Accordingly, the award is set aside.
Issued, Washington, D.C., August 28, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ In its opposition the Union asserts, among other things, that the
Agency's exception, which was filed by the Department of Justice, should
be dismissed because the Department of Justice was not a "party" to the
arbitration proceeding and therefore lacked standing to file the
exception. However, the Authority finds that the exception was properly
filed by the Agency on behalf of one of its organizational elements.
See U.S. Department of Justice, Immigration and Naturalization Service
and American Federation of Government Employees,